Court ruling on access could increase government secrecy

Canadians’ ability to access government papers suffered a setback Friday with a Supreme Court ruling that may give ministers greater scope for secrecy, the country’s information watchdog says.

On the surface, the top court ruled to maintain the status quo that keeps the prime minister, his cabinet and political staff beyond of the reach of the Access to Information Act.

But advocates for transparency, as well as Information Commissioner Suzanne Legault, said the unanimous judgment likely will make it harder to get government documents.

“I think it further limits the right of Canadians to access government decisions recorded in documents,” Legault said.

“(Canadians) should be concerned because that’s the only way they can hold their government to account, because if they don’t know what is occurring in some very important meetings, then they have no idea of the basis of the decisions the government is making on their behalf.”

Legault said the decision also complicates her investigations into complaints by those denied documents and may lead to more court battles.

“The quickest, easiest, less-costly thing to do would be to fix the law,” she said.

In its ruling, the Supreme Court said ministers’ offices are not considered government institutions under the Access to Information Act, nor are the prime minister and his ministers “officers” of government institutions.

They are distinct from government departments, or public officials, which are subject to the access laws.

The 9-0 decision also found that documents such as the prime minister’s daily agenda — which was one of the documents sought — could not be released even if found outside his office because they are subject to the Privacy Act.

The court did give those seeking information a tiny opening. Documents found in the ministers’ office must be released if they pertain to administrative matters and could be considered under the control of government institutions. The test, the court said, is if an officer of a department, such as a deputy minister, has a reasonable expectation of obtaining the document.

If so, then they are public documents subject to an access request.

That should be sufficient to prevent the creation of a “black hole” where a minister seeks to keep secret any embarrassing or sensitive matter simply on the grounds that he or she has it in their office, the court said.

But if not a perfect black hole, it will do as a reasonable facsimile, responded critics, who said the point-by-point outline of the court actually provides a roadmap for ministers to hide information.

“These guys will be laughing because they now have a means to solidify further these firewalls and build them right into the department beachhead … because if the Supreme Court says so, it’s like God saying so,” said Ken Rubin, a public-interest researcher who is an extensive user of the access process.

Given the outcome, it might have been a mistake to test the issue all the way to the Supreme Court in the first place, he added.

“I used to be able to get ministers’ agendas all the time, but by taking this to the courts one ran the risk that you would solidify the exclusions.”

Sean Bruyea, a veteran whose battle with the government became a celebrated case after his confidential medical and financial information found its way into a minister’s briefing notes, said the ruling could make revelations such as his impossible in the future.

“Essentially, all work done by departments is for the minister and therefore any reprisals or other malevolent behaviour on the part of bureaucrats and politicians such as happened in my case will undoubtedly proliferate if protected,” he said in an email.

The decision ends a decade-long challenge triggered by a Reform party researcher who had requested the daily agendas of former prime minister Jean Chretien from 1994 to 1998.

Other documents sought included the agenda of then-transport minister David Collenette, and notes of high-level meetings taken by staff of Chretien’s defence minister, Art Eggleton, both in 1999. In this case, they were the only record of the meetings and hence remain secret.

Ironically, the Reform researcher, Laurie Throness, found himself on the opposite side of the court case as chief of staff of the current transport minister.

The Prime Minister’s Office and the defence minister were also listed as respondents.

Writing for the court, Justice Louise Charron stressed that the decision was not a reflection of whether such documents need to be kept secret, but purely an interpretation of the current statute.

“The court cannot disregard the actual words chosen by Parliament and rewrite the legislation to accord with its own view of how the legislative purpose could be better promoted,” she wrote.

Still, Charron said the issue of what is a departmental document and hence in control of a government institution should be interpreted broadly.

NDP critic Paul Dewar noted that the Conservatives promised to reform the access legislation when in opposition, and have now been given a clear reason to act.

“This is a call for change if you want openness in government,” he said.